constitutional law essay

The rule of law can be defined as the fundamental

The rule of law itself traces back to Aristotle who said that ‘the rule of law is preferable to any individual’ [1] . This still holds true in the modern context because it is accepted the law is superior to the individual. This therefore maintains the concept of equality in constructing it. The key example to note are the three principles provided by A.V. Dicey; ‘no man can be made to suffer punishment... for any conduct not definitely forbidden by law’; ‘no man is above the law... every man, whatever be his rank or condition, is subject to the ordinary law of the realm; the general principles of the constitution (as for example the right to personal liberty...) are with us the result of judicial decisions determining the rights of private persons [2] . When Dicey’s principles are adhered to when constructing law, they can assure a citizen sufficient protection regarding the misuse of power. In theory, they limit governmental power and eliminate the chances of a dictatorship. Furthermore they maintain the standards of liberal democracy treasured by our country and endorses the notion of equality in law; therefore providing a sense of autonomy for the individual.

The declaration of Delhi (1959) can be considered a more modern interpretation of the rule of law than Dicey’s. The principles contained within it address Dicey’s interpretation but also that of others such as Joseph Raz and Ronald Dworkin. Such issues are: respect for human rights, the ability to bring proceedings against the state, the right to a fair trial and the presumption of innocence. All of which at present are manifested within our system when accounting the human rights act (1998) [3] , the process of judicial review, and the assistance of legal aid. However if we consider the criteria which states there should be adequate control of delegated legislation, one recalls the ability of the executive to pass such legislation without sufficient check and balance. This can be considered the most important aspect of Delhi which is not addressed in the constitution sufficiently as it allows the potential misuse of power due to its inbalance..

There are several modern definitions of the rule of law which should be considered, the first of which it being interpreted as a political concept. This is synonymous with Professor Joseph Raz who concentrated more on a systematic approach stating it shouldn’t be ‘confused with democracy, justice, equality... or for the dignity of man’ [4] . If this particular interpretation of the rule of law was generally accepted then it would imply an individual as inferior to a member of parliament for example, allowing the potential for misuse of power. Raz also suggests that the courts should be easily accessible. This is crucial to the protection of the citizen from misuse of power because if the legal process was not transparent, then one’s rights could easily be overridden and therefore an injustice done. Furthermore, this provides certainty of impartiality as a citizen will be aware of what reason they could be prosecuted for.

Secondly there is the substantive approach as primarily conveyed by Ronald Dworkin which follows the route of utilitarianism

In the United Kingdom, the concept of equality is, in theory, manifested within the constitution. However one cannot neglect the existence of exceptions to such a concept when considering prerogative powers and certain legal immunities and power for select people in certain positions. Such examples include the police, customs officers or public health inspectors. Whether forcibly entering private premises to inspect or taking possession of someone’s property; even if legal by statute; indicates that equality in law is non-existent. Additionally one can note the legal immunities enjoyed by an ambassador or diplomats where they are posted. To elaborate even further, children aged ten and under are immune to conviction of criminal offense, even though there is the rare possibility that they could potentially commit a crime of any scale. The overarching point being that if there is true equality in the law stems from the rule of law, there should not be exceptions that protect some but not all citizens.

The harmonisation of the rule of law and the separation of powers contribute to the democratic practice of the constitution. This doctrine of the separation of powers intends that the government is not dominated by one section of it, so as to maintain justice and balance in the constitution as intended by the rule of law. This was conveyed by Montesquieu who stated ‘there is no liberty if the power of judging is not separated from the legislative and the executive’ [5] . ’ This is further solidified through the constitutional reform act 2005 [6] which states that it will ’uphold the continued independence of the judiciary’ [7] which in turn validates Lord Denning’s assertion that the British constitution is ‘firmly based’ [8] on the separation of powers. This exhibits the rule of law vitally incorporated into another area of our constitution in order to ensure that a citizen is protected with knowledge that in the face of the law, they will receive just and unbiased treatment. Furthermore this can be related to the idea of constitutional conventions which are essentially moralistic non legal rules. All three of these are guided by morals which are intended to be adhered to for the benefit of the citizen.

The process of judicial review is the best example of the rule of law in practice. Unlike codified constitutions such as that of the United States or France, the British constitution attempts to remedy infringement of individual’s rights through statutory law. Failing this there is the chance it will be subject to judicial review, carried out with respect to the rule of law. Lord Hoffman explained the as process ensuring ‘that administrative decisions will be taken rationally in accordance with a fair procedure and within the powers conferred by parliament’ [9] because ‘ the principles of judicial review give effect to the rule of law’ [10] . In essence a citizen can be reassured that if a decision is not in accordance with the rule of law, there is further remedy available which helps restructure our system. On the contrary, because judicial review is not an appeals process, raises an issue because it only determines how the decision of a case was reached, not its correctness. Consequently the rule of law can fail to protect the citizen in this instance.

The first principle can be contrasted when examining the compulsory purchase orders which theoretically denies a citizen the right to not have their ‘goods interfered with except for a distinct breach in the law’ [11]

The underlying theory of the rule of law is that it helps entrench the fundamental rights of the ordinary citizen in common law. The creation of the Human Rights Act was built upon this and has, since its acceptance in the year 2000, given further protection to the citizen against misuse of power.

b.

After consideration of the facts in the previous section, this essay will now analyse how the rule of law endeavours to protect the citizen against legislation and the power of the executive, in order to determine its efficiency.

Firstly we will revisit the principles of dicey and determine if they are undermined by law or executive powers. In the Police and Criminal Evidence Act (1984) [12] , there is substantial power entrusted to the police to search anyone they wish but they must take ‘reasonable steps before he commences the search’ [13] . Reasonableness is a vague term and can be interpreted in any manner therefore the act allows potential for abuse; this has been outlined in the news where a couple were claiming to have had their ‘right to respect for a private and family life’ [14] violated by a policeman and won their case. It is however possible to argue that such an infringement on liberty is necessary otherwise the crime rate would rise. The rule of law in this instance has served its purpose because it allowed the couple to challenge the morality of an Act. Therefore it provides the opportunity for judicial review to ensure it is suitable by the standards of the rule of law.

Diceys third principle is the most secure of all. examine the case of R v Horseferry Road Magistrates’ Court [15] where a wanted man was illegally abducted, flown back to the UK and put on trial, denied appeal at first but then overturned. The significance of this case is that after being wronged by the authorities, due to the remedy provided by the common law system the man was protected from misuse of power. This is crucial in determining the effectiveness of the rule of law because the its morals were upheld even against black and white letter law. This is similar to Entick v Carrington [16] where the Enticks house was trespassed into without a legal warrant. The fact that the ordinary citizen won the case considering his governmental opposition outlines that it is possible for the rule of law to succeed in protection of the citizen from misuse of power

The prerogative powers held by the executive pose an extreme contrast to the moral concepts intended by the rule of law. The Prime Minister retains the power to declare war and as conveyed by Julian Samiloff in the New Law Journal: ‘he knows that such use cannot generally be challenged in the courts or stopped by a Parliament’ [17] . Such a decision affects citizens’ greatly due soldiers leaving for war even if they don’t agree with the decision. This is further illustrated through the resignation of ex foreign secretary Robin Cook when Tony Blair (then prime minister) chose to go to war with Iraq; Cook stated that he couldn’t ‘accept collective responsibility for the decision to commit Britain now to military action in Iraq’. [18] In a democratic society decisions are expected to reflect the will of the people. Having the power to take such action without vote in parliament or to an extent the citizens outlines disregard for the rule of law, and demonstrates how in cases it cannot protect the citizen from the exercise of executive powers.

In our system, arbitrary power is supposedly absent. This is not necessarily the case when considering the laws we maintain on terrorism. The state has exercised its power to apply different laws to suspected terrorists than to other suspected criminals The dilemma of the “tipton three" where three Britons were ‘sent to Guantánamo Bay as suspected terrorists’, then ‘released without charge’ illustrates a prime example. The case of Congreave v The Home Office [19] The rule of law suggests that one should be “innocent until proven guilty" which was not respected in this instance.

A significant area regarding the rule of law protecting a citizen against acts of parliament is the offense of rape. According to the Sexual Offences Act 2003 [20] a person ‘commits an offence if he intentionally penetrates the vagina, anus or mouth of another person, with his penis’ [21] . The rule of law implies that you must be in breach of the law to be punished. Jane McKenna is an example of a citizen who was failed by the rule of law as she was raped with the result being the accused acquitted of the charges. Mckenna stated ‘It is something that has taken away my dignity’ [22] . One could argue in this case that Raz’s interpretation of the rule of law as a political concept would have better suited

The separation of powers must be revisited regarding the executive powers that stem from it. Like the rule of law, the separation of powers is also not codified and therefore is more of a convention. Regardless of the Constitutional Reform Act

John P Franks claimed that ‘under no circumstances should the state impose additional inequalities; it should be required to deal evenly and equally with all of its people’ [23] . In effect this is not strictly followed in light of certain executive powers one crucial in particular having the ability to declare war

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